As filed with the Securities and Exchange
Commission on December 19, 1996.
Registration No. 333-17261
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
DURAMED PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
Delaware 11-2590026
(State or other jurisdiction (IRS Employer
of incorporation or organization) Identification No.)
7155 East Kemper Road
Cincinnati, Ohio 45249
(513) 731-9900
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
E. Thomas Arington
Duramed Pharmaceuticals, Inc.
7155 East Kemper Road
Cincinnati, Ohio 45249
(513) 731-9900
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copy to:
Timothy E. Hoberg
Taft, Stettinius & Hollister
1800 Star Bank Center
425 Walnut Street
Cincinnati, Ohio 45202
Approximate date of commencement of proposed sale to
public: From time to time after this Registration Statement
shall become effective.
If the only securities being registered on this Form
are being offered pursuant to dividend or interest reinvestment
plans, please check the following box. [ ]
If any of the securities being registered on this Form
are to be offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933, other than securities
offered only in connection with dividend or interest reinvestment
plans, check the following box. [X]
If this Form is filed to register additional securities
for an offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same offering. [ ] __________
If this Form is a post-effective amendment filed
pursuant to Rule 462(c) under the Securities Act, check the
following box and list the Securities Act registration statement
number of the earlier effective registration statement for the
same offering. [ ] __________
If delivery of the prospectus is expected to be made
pursuant to Rule 434, please check the following box. [ ]
The Registrant hereby amends this Registration
Statement on such date or dates as may be necessary to delay its
effective date until the Registrant shall file a further
amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until the
Registration Statement shall become effective on such date as the
Commission, acting pursuant to said Section 8(a), may determine.
<PAGE>
EXPLANATORY NOTE
This Amendment No. 1 is being filed to furnish Exhibit
4.3, which has been amended.<PAGE>
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 16. Exhibits.
The following Exhibits are filed as part of this
Registration Statement.
Exhibit No.
4.1 Certificate of Designation, Preferences and
Rights of Series A Preferred Stock*
4.2 Certificate of Designation, Preferences and
Rights of Series B Preferred Stock **
4.3 Amended Terms of 8% Cumulative Convertible
Preferred Stock, Series D
5 Opinion of Counsel***
23.1 Consent of Independent Auditors***
23.2 Consent of Counsel (included in Exhibit 5)***
24 Power of Attorney***
_________________
* Filed as an exhibit to the Company's Annual
Report on Form 10-K for the year ended
December 31, 1988 and incorporated herein by
reference.
** Filed as an exhibit to the Company's Annual
Report on Form 10-K for the year ended
December 31, 1994 and incorporated herein by
reference.
*** Previously filed.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of
1933, the Registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form
S-3 and has duly caused this Amendment to Registration Statement
to be signed on its behalf by the undersigned, thereunto duly
authorized, in Cincinnati, Ohio, as of the 19th day of December,
1996.
DURAMED PHARMACEUTICALS, INC.
BY: /s/ E. Thomas Arington
E. Thomas Arington
Chairman of the Board,
President and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of
1933, this Amendment to Registration Statement has been signed by
the following persons in the capacities indicated as of the 19th
day of December, 1996.
Signature Title
/s/ E. Thomas Arington Chairman of the Board, President
E. Thomas Arington and Chief Executive Officer
(principal executive officer)
/s/ Timothy J. Holt Senior Vice President, Finance and
Timothy J. Holt Administration and Treasurer
(principal financial and
accounting officer)
/s/ George W. Baughman* Director
George W. Baughman
President, Duramed Europe, Ltd.
Derek G. Layton and Director
/s/ Stanley L. Morgan* Director
Stanley L. Morgan
/s/ S. Sundararaman* Director and Secretary
S. Sundararaman
*Pursuant to Power of Attorney
/s/ Timothy J. Holt
Timothy J. Holt
Attorney-in-Fact
AMENDED TERMS OF 8% CUMULATIVE CONVERTIBLE
PREFERRED STOCK, SERIES D
DURAMED PHARMACEUTICALS, INC.(the "Corporation")
1. Designation and Amount. There is hereby established a
series of Preferred Stock to be designated as the "8% Cumulative
Convertible Preferred Stock, Series D" (the "Series D Convertible
Preferred Stock") and the number of shares which shall constitute
such series shall be 200,000 shares, with a stated value (the
"Stated Value") of $100 per share.
2. Dividends.
(a) General. The holders of the Series D Convertible
Preferred Stock shall be entitled to receive, when and as
declared by the Board of Directors out of funds legally available
therefor, cumulative preferential cash dividends, at the rate of
8% of the Stated Value per annum from the date of issuance (with
appropriate proration for any partial dividend period). Such
cumulative dividends shall be payable quarterly in arrears on the
fifteenth day of each January, April, July and October,
commencing October 15, 1996.
(b) Dividends Cumulative. Dividends on the Series D
Convertible Preferred Stock shall accrue and be cumulative from
the date of issuance, whether or not earned and whether or not in
any dividend period there shall be surplus or net profits of the
Corporation legally available for the payment of such dividends.
(c) Equality of Shares. No dividend shall be declared
or set apart for any shares of the Series D Convertible Preferred
Stock for any period unless at the same time a like proportionate
dividend for the same period shall be declared or set apart for
all shares of the Series D Convertible Preferred Stock then
outstanding and entitled to receive such dividend.
(d) Restrictions with Respect to Junior Shares. So
long as any shares of the Series D Convertible Preferred Stock
shall remain outstanding, no dividend shall be declared or paid
or set apart for payment on the Common Stock or any other class
of stock ranking junior to the Series D Convertible Preferred
Stock in either payment of dividends or liquidation (all such
junior classes of stock including, without limitation, the Common
Stock, hereinafter referred to collectively as the "Junior
Stock") unless full dividends (including interest on any
accumulations of dividends) on all outstanding shares of Series D
Convertible Preferred Stock shall have been paid in full for all
past dividend periods and the dividends on all outstanding shares
of Series D Convertible Preferred Stock for the then current
dividend period shall have been paid or declared and sufficient
funds set apart for payment thereof.
3. Liquidation Preference.
(a) General. The Series D Convertible Preferred Stock
shall be preferred over the Common Stock and any other class or
series of Junior Stock. In the event of any liquidation or
dissolution or winding up of the Corporation, the holders of the
Series D Convertible Preferred Stock shall be entitled to
receive, after payment or provision for payment of the debts and
other liabilities of the Corporation, out of the assets of the
Corporation available for distribution to its shareholders, all
accumulated and unpaid dividends before any distribution of the
assets shall be made to the holders of the Common Stock or any
other class or series of Junior Stock. After payment of
accumulated dividends on the Series D Convertible Preferred Stock
shall have been made in full as provided in the preceding
sentence, but not prior thereto, the Preferred Stock, the Common
Stock and any other series or class of Junior Stock shall,
subject to the respective terms and provisions, if any, applying
thereto, be entitled to receive any and all assets remaining to
be paid or distributed, with the Series D Convertible Preferred
Stock sharing therein in an amount per share of Series D
Convertible Preferred Stock equal to the amount to be distributed
on each share of Common Stock multiplied by a fraction the
numerator of which is the Stated Value of such share of Series D
Convertible Preferred Stock and the denominator of which is the
then Conversion Price.
(b) Distributions Pro Rata. If upon any liquidation
or dissolution or winding up of the Corporation the amounts
payable on or with respect to the Series D Convertible Preferred
Stock together with the amounts payable on or with respect to all
classes or series of stock ranking on a parity with the Series D
Convertible Preferred Stock as to distribution of assets are not
paid in full, the holders of shares of Series D Convertible
Preferred Stock together with all classes or series of stock
ranking on a parity with the Series D Convertible Preferred Stock
as to distribution of assets shall share pro rata in any
distribution of assets in respect of the shares held by them upon
such distribution in proportion to the amounts that would have
been distributable to each such class or series if all amounts
payable on or with respect to the Series D Convertible Preferred
Stock and any other class or series of stock that so ranks on a
parity with the Series D Convertible Preferred Stock had been
paid in full.
(c) Merger or Consolidation. Neither the merger or
consolidation of the Corporation with another corporation nor the
sale or lease of all or substantially all of the assets of the
Corporation shall be deemed to be a liquidation or dissolution or
winding up of the Corporation.
(d) Notice Required. Written notice of any voluntary
or involuntary liquidation, dissolution or winding up of the
affairs of the Corporation, stating the payment date and the
place where the distributable amount shall be payable and stating
the anticipated amount of any such distributable amount, shall be
given by mail, postage prepaid, not less than thirty (30) days
prior to the payment date stated therein, to the holders of
record of the Series D Convertible Preferred Stock at their
respective addresses as the same shall then appear on the books
of the Corporation.
4. Conversion.
(a) General. Shares of Series D Convertible Preferred
Stock may be converted at the option of the holder thereof, or
otherwise as provided below, into fully paid and nonassessable
shares of Common Stock of the Corporation at a price (the
"Conversion Price") equal to 85% of the Market Price (as defined
below) per share of Common Stock on the date of conversion (but
the Conversion Price shall be not less than $7.00 per share (the
"Minimum Price") or greater than $20.00 per share (the "Maximum
Price")) with respect to the Stated Value of each share of Series
D Convertible Preferred Stock, together with all accrued but
unpaid dividends thereon. Such option may be exercised by any
holder on or after October 9, 1996. Any shares of Series D
Convertible Preferred Stock not converted into Common Stock prior
to July 11, 1998 shall be automatically converted on such date
without any action of the holder thereof. The Market Price per
share of Common Stock on any date shall be deemed to be the
average of the daily closing prices for the 10 consecutive
trading days ending on the trading day prior to the day in
question. "Closing price" on any day when used with respect to
the Common Stock means the reported closing bid price therefor as
reported by Bloomberg, L.P., or if not so reported the closing
bid price as furnished by any member of the National Association
of Securities Dealers, Inc. selected from time to time by the
Corporation for that purpose.
(b) Adjustments. The Minimum and Maximum Prices, the
Maximum Number of Shares of Common Stock and the kind and amounts
of securities and property for which the shares of Series D
Convertible Preferred Stock may be converted shall be subject to
adjustment from time to time as follows:
(i) If, at any time after the issuance of the
Series D Convertible Preferred Stock, the Corporation shall (A)
declare or pay a dividend, or make a distribution, to all holders
of its Common Stock in shares of Common Stock, (B) subdivide its
outstanding shares of Common Stock into a greater number of
shares, (C) combine its outstanding shares of Common Stock into a
smaller number of shares, or (D) issue by reclassification of its
shares of Common Stock (other than a subdivision or combination
thereof or a change in par value) any securities, the Maximum
Price and the Minimum Price and the Maximum Number of Shares of
Common Stock in effect immediately prior to such action shall be
adjusted so that the holder of any share of Series D Convertible
Preferred Stock thereafter surrendered for conversion shall be
entitled to receive the kind and number of shares of Common Stock
of the Corporation and/or other securities which he would have
owned or been entitled to receive immediately following such
action had such share of Series D Convertible Preferred Stock
been converted immediately prior thereto. Any adjustment made
pursuant to this Paragraph (b)(i) shall become effective
immediately after the record date in the case of a dividend or
distribution and shall become effective immediately after the
effective date in the case of a subdivision, combination or
reclassification.
(ii) If, at any time after the date of issuance
of the Series D Convertible Preferred Stock, the Corporation
shall distribute to all or substantially all holders of its
Common Stock either (A) evidences of indebtedness or assets
(excluding cash dividends or distributions) or (B) any other
securities of the Corporation or any rights, warrants or options
to subscribe for, purchase or otherwise acquire securities of the
Corporation in a transaction not covered by Paragraph (b)(i)
above (any of which are referred to herein as "Other
Securities"), then and in any such case the Corporation shall
either distribute such Other Securities to the holders of the
Series D Convertible Preferred Stock or reserve for the benefit
of the holders of the Series D Convertible Preferred Stock such
amount of such Other Securities as the holders of all Series D
Convertible Preferred Stock then outstanding would have owned or
been entitled to receive immediately following such action had
the shares of Series D Convertible Preferred Stock been converted
into shares of Common Stock immediately prior thereto. In
addition, the Corporation shall either distribute to, or reserve
for the benefit of, the holders of the Series D Convertible
Preferred Stock any principal, interest, dividends or other
property payable with respect to such Other Securities as and
when such interest, dividends or other property is distributed to
the holders of Common Stock. If such a reserve is made, as and
when each such share of Series D Convertible Preferred Stock is
converted, the holder of such share shall be entitled to receive
from the Corporation his share of such Other Securities together
with the principal, interest, dividends or other property payable
with respect thereto.
(iii) All calculations under this Section 4 shall
be made to the nearest one-tenth of a cent or to the nearest one
thousandth of a share, as the case may be. No adjustment shall
be required unless such adjustment would result in an increase or
decrease of at least one percent (1%) of the Minimum Price and
the Maximum Price; provided, however, that any adjustments which
by reason of this subparagraph (iii) are not required to be made
shall be carried forward and taken into account in any subsequent
adjustment.
(iv) Whenever the Minimum Price and the Maximum
Price are adjusted or Other Securities are reserved as herein
provided, the Corporation shall mail or cause to be mailed a copy
of a statement, verified by its independent certified public
accountants, setting forth the required adjustments or the nature
and amount of Other Securities, as the case may be, to each
person who is a registered holder of Series D Convertible
Preferred Stock at such person's last address as the same appears
on the books of the Corporation. Each adjustment shall remain in
effect until a subsequent adjustment is required hereunder.
Failure to give or receive such notice or any defect therein
shall not affect the legality or validity of any action taken.
Following any adjustment to the Minimum Price and the Maximum
Price, the holders of the Series D Convertible Preferred Stock
shall be entitled, by themselves or through attorneys or
accountants retained by them, to inspect the books and records of
the Corporation in order to verify such adjustment. Such
inspection shall be at the expense of the holders of the Series D
Convertible Preferred Stock requesting such inspection unless
such inspection reveals an error in the adjustment equal to 5% or
more of the Minimum Price and the Maximum Price, in which case
the Corporation shall promptly reimburse the holders for all
expenses incurred in connection therewith.
(v) If at any time, as a result of an adjustment
made pursuant to Paragraph (ii) above, the holders of Series D
Convertible Preferred Stock shall become entitled to receive upon
conversion any Other Securities, thereafter the number of such
Other Securities receivable upon conversion of the Series D
Convertible Preferred Stock and the price of the Other Securities
shall be subject to adjustment from time to time and in a manner
and on terms as nearly equivalent as practicable to the
provisions with respect to Series D Convertible Preferred Stock
contained in Paragraphs (i) and (ii), above.
(c) Merger or Consolidation. In case of a merger or
consolidation of the Corporation with or into another
corporation, or the sale or transfer of all, or substantially
all, of the property or assets of the Corporation, the holders of
shares of Series D Convertible Preferred Stock shall thereafter
have the right to convert each of such shares into the kind and
amount of shares of stock or other securities and property
(including cash) receivable (the "Consideration") upon such
merger, consolidation or sale by a holder of the number of shares
of Common Stock (whether whole or fractional) into which such
shares of Series D Convertible Preferred Stock might have been
converted immediately prior to such merger, consolidation or sale
(all of which Consideration shall be reserved and become payable
upon conversion in the same manner as for Other Securities
pursuant to Paragraph (b)(ii) above and shall be adjusted as
provided in Paragraph (b) above), and shall have no other
conversion rights under these provisions and, in addition, the
Corporation shall reserve, on a current basis as and when
distributed, for payment upon conversion, in the same manner as
required for Other Securities pursuant to Paragraph (b)(ii)
above, any interest, dividends, other stock, securities or
property distributable with respect to the Consideration, the
same as if such shares of Series D Convertible Preferred Stock
had been converted immediately prior to such merger,
consolidation, or sale of assets; and effective provision shall
be made in the charter of the resulting or surviving corporation
or otherwise, so that the provisions set forth herein for the
adjustment of the conversion terms of the Series D Convertible
Preferred Stock shall thereafter be applicable, as nearly as
reasonably may be, to any of the Consideration deliverable upon
conversion of Series D Convertible Preferred Stock remaining
outstanding or other convertible preferred stock received in
place thereof. Any such resulting or surviving corporation shall
expressly assume the obligation to deliver the Consideration,
upon the exercise of the conversion right, (and, to that end,
shall reserve sufficient Consideration to issue, distribute
and/or pay the holders of the Series D Convertible Preferred
Stock as if all such stock were converted) as holders of Series D
Convertible Preferred Stock remaining outstanding, or other
convertible preferred stock received by such holders in place
thereof, shall be entitled to receive pursuant to the provisions
hereof, and to make provision for protection of conversion rights
as above provided.
(d) Notices. If, at any time while shares of Series D
Convertible Preferred Stock are outstanding, the Corporation
shall (i) declare a dividend (or any other distribution) on its
Common Stock, other than in cash, or (ii) reclassify its Common
Stock (other than through a subdivision or combination thereof or
a change in par value) or become a party to any consolidation or
merger or sale or transfer of all or substantially all of the
assets of the Corporation, for which approval of the holders of
its stock is required, then the Corporation shall cause to be
mailed to registered holders of Series D Convertible Preferred
Stock, at their last addresses as they shall appear on the books
of the Corporation, at least thirty (30) days prior to the
applicable record date hereinafter specified, a notice stating
(x) the date on which a record is to be taken for the purpose of
such dividend or distribution, or, if a record is not to be
taken, the date as of which holders of Common Stock of record to
be entitled to such dividend or distribution are to be
determined, or (y) the date on which any such reclassification,
consolidation, merger, sale or transfer is expected to become
effective, and the date as of which it is expected that holders
of record of Common Stock shall be entitled to exchange their
Common Stock for securities or other property, if any,
deliverable upon such reclassification, consolidation, merger,
sale or transfer. Failure to give or receive the notice required
by this Paragraph (d) or any defect therein shall not affect the
legality or validity of any such dividend, distribution,
reclassification, consolidation, merger, sale, transfer or other
action.
(e) Exercise of Conversion Rights. The holder of any
shares of Series D Convertible Preferred Stock may exercise his
option to convert such shares into shares of Common Stock only by
surrendering for such purpose to the Corporation the certificates
representing the shares to be converted, accompanied or preceded
by written notice (which may be transmitted by telecopier) that
such holder elects to convert such shares in accordance with the
provisions of this Section 4. Said notice shall also state the
name or names (with addresses) in which the certificate or
certificates for shares of Common Stock which shall be issuable
on such conversion shall be issued. Each certificate or
certificates surrendered for conversion shall, unless the shares
issuable on conversion are to be issued in the same name as that
in which such certificate or certificates are registered, be
accompanied by instruments of transfer, in form satisfactory to
the Corporation, duly executed by the holder or his duly
authorized attorney. Each conversion shall be deemed to have
been effected on the date on which such notice shall have been
received by the Corporation as aforesaid, provided that the
certificates to which such notice relates are received by the
Corporation no later than the third business day following the
date of receipt of such notice, and the person or persons in
whose name or names any certificate or certificates for shares of
Common Stock shall be issuable upon such conversion shall be
deemed to have become on said date the holder or holders of
record of the shares represented thereby notwithstanding that the
transfer books of the Corporation may then be closed or that
certificates representing such shares of Common Stock shall not
then be actually delivered to such person. Within three business
days after receipt of the certificates representing the shares to
be converted and the notice of conversion, the Corporation shall
issue and deliver to the person or persons entitled to receive
the same a certificate or certificates representing the number of
shares of Common Stock issuable upon such conversion and shall
pay or cause the payment of such Other Securities or
Consideration or other property as may be payable upon conversion
pursuant to Paragraphs (b)(iii) or (c) of this Section 4.
(f) Fractional Shares. No fractional shares of Common
Stock shall be issued in connection with the conversion of shares
of Series D Convertible Preferred Stock into Common Stock.
Instead of any fractional share of Common Stock which would
otherwise be issuable on conversion, the Corporation shall pay a
cash adjustment with respect to such fractional share computed on
the basis of the then current fair market value of the Common
Stock, as determined in good faith by the Corporation's Board of
Directors.
(g) Tax on Conversion. The issuance of stock
certificates on conversions of shares of Series D Convertible
Preferred Stock shall be made without charge to converting
shareholders for any tax in respect of the issuance thereof
except any tax on the income or gain derived by the converting
shareholders as a result of the issuance thereof. The
Corporation shall not, however, be required to pay any tax which
may be payable in respect of any registration of transfer
involved in the issue and delivery of stock in any name other
than that of the holder of the shares of Series D Convertible
Preferred Stock converted, and the Corporation shall not be
required to so issue or deliver any stock certificate unless and
until the person or persons requesting the registration of
transfer shall have paid to the Corporation the amount of such
tax or shall have established to the satisfaction of the
Corporation that such tax has been paid.
(h) Securities Reserved. The Corporation shall at all
times reserve and keep available out of its authorized Common
Stock (and any Other Securities or Consideration or property) the
full number of shares of Common Stock (and any Other Securities
or Consideration or property) deliverable upon the conversion of
all outstanding shares of Series D Convertible Preferred Stock.
The Corporation shall not enter into any agreement or take any
action which would impair or restrict its legal authority to
issue such shares of Common Stock, Other Securities or
Consideration or property upon conversion or to defeat in any way
the right of the holders of the Series D Convertible Preferred
Stock to receive such consideration upon conversion. In
addition, whenever the Corporation is required to reserve any
interest, dividends or other property payable upon conversion of
the Series D Convertible Preferred Stock, the Corporation shall,
as to cash, deposit such amounts in one or more separate accounts
for the sole benefit of the holders of the Series D Convertible
Preferred Stock upon conversion and, as to other property,
physically segregate or otherwise set such property aside in such
a manner as to protect the rights of the holders of the Series D
Convertible Preferred Stock to the receipt of such property upon
conversion.
(i) Effect of Conversion. All shares of Series D
Convertible Preferred Stock which shall have been converted into
shares of Common Stock shall assume the status of authorized but
unissued shares of Preferred Stock undesignated as to series.
5. Voting Rights.
No holder of Series D Convertible Preferred Stock shall
be entitled to vote on any matter submitted to the shareholders
of the Corporation for their vote, waiver, release or other
action, except as may be otherwise expressly required by law.
6. Amendment.
Notwithstanding the provisions of Section 5 above, so
long as any share of Series D Convertible Preferred Stock is
outstanding, the Articles of Incorporation of the Corporation
shall not be amended in any manner which would materially alter
or change the powers, preferences or special rights of the Series
D Convertible Preferred Stock so as to affect them adversely
without the affirmative vote of the holders of a majority of the
outstanding shares of Series D Convertible Preferred Stock,
voting separately as a class.
